An Arkansas judge (handle “geauxjudge”) is banned from the bench for life for various troubling anonymous online comments, including revealing confidential information about Charlize Theron’s adoption.

Since the news of the Justice Department getting their hands on phone records of the Associated Press – without the AP’s cooperation – there has been new talk of a federal shield law.

But how broad would the shield law be? To cut to the chase: Would if cover bloggers?

The issue was nicely teed up in a PandoDaily post yesterday by Adam L. Penenberg:

[W]hen you’re trying to craft laws to protect journalists from having to disclose the identities of confidential sources, the first thing you must do is define what a journalist is. Unfortunately, that’s not so easy, because, well, what is a journalist? I’ve been working as one for almost 20 years, and I couldn’t give you a definition. What’s more, I don’t know anyone who could. More to the point, how do you cover everyone who should be covered in this day, when everybody can be his or her own publisher but not cover those who shouldn’t be protected?

Mr. Penenberg’s post does a nice job of exploring the range of possible ways to deal with that question in surveying some of the many state shield laws in the U.S. and giving some of the history of how false starts on a federal shield law in recent years have dealt with the blogger question.

Of course, there’s also the separate scope question of a national-security exception. With such an exception, the question of who counts as a journalist may often be academic.

In an amicus brief, the Reporters Committee for Freedom of the Press is urging the courts in Virginia to apply a heightened standard of review before ordering that anonymous online commenters be outed.

(I won’t tell you the facts of the case, but the caption is Hadeed Carpet Cleaning, Inc., v. John Doe #1, et al., and the respondent on the other side of the discovery order is Yelp, Inc. So I’m betting you can figure it out.)

[T]he First Amendment restricts compulsory identification of anonymous speakers on the Internet. When faced with questions of compelled disclosure of anonymous online speakers, this Court must adopt a meaningful standard that requires a heightened showing of evidence of a valid claim and notice to the affected parties. This standard is essential to protect the interests in anonymous speech, which often serve the public good and contribute to a better understanding of public issues and controversies.

Joining the amicus brief were Washington Post, American Society of Newspaper Editors, and the Gannett Company, which owns USA Today.

The Canberra Times is reporting that the leader of New South Wales is asking the Australian federal government for tighter controls on what are called Twitter “trolls.”

The request is in response to an incident in which a star rugby player received an anonymous vulgar Tweet regarding his mother, who died of pancreatic cancer.

To put this in context, online abuses that get almost universal disapproval here in the United States – but that are protected speech under the U.S. Constitution – are actually out of bounds under Australian law, according to the newspaper:

A Twitter user or troll found to ”menace, harass or cause offence” using the social networking medium could be jailed for up to three years.

A person can be prosecuted under this section if they use a ”carriage service” – essentially, any communication device – to pressure another person, in a way that would be regarded by ”reasonable persons” as being ”menacing, harassing, or offensive”.

There are also laws at state level that can be used to stamp out offensive online behaviour.

But there’s one major caveat. Because these “trolls” set up bogus accounts to do their dirty deeds and then deactivate them quickly, it seems that no one has actually been prosecuted for their Twitter behavior.

From what I see, Twitter is doing a strong job of standing up for user privacy in the case of the criminal prosecution of Malcolm Harris. In that case (CMLP summary) New York prosecutors are trying to get Twitter to hand over information about Harris, who has been charged with disorderly conduct relating to an October 2011 Occupy Wall Street protest on the Brooklyn Bridge.

Yesterday, Twitter handed over the requested information pursuant to a court order.

There has been a lot of traffic suggesting that Twitter gave up rather than continue to fight (e.g., Betabeat: “Twitter Caves”). But that’s unfair. Twitter is trying to get review from a higher court. And the records they turned over are sealed until September 21, when another hearing is set.

Twitter has done the right thing. It is right for Twitter to resist. But it is also right for Twitter to comply with the court order to turn over the information. (Even though the court was plainly wrong to issue the order.)

What Twitter should do – and what it is doing in this case – is use all available legal process to protect user privacy. Twitter should not, however, violate the law in order to thwart the courts and prosecutors.

Many reporting on the case have said something to the effect that Twitter decided to turn over the information rather than face expensive fine for being held in contempt of court. (EFF said something similar in an otherwise great post on the case.) Saying that makes it sound like Twitter cheaped out. But, as I see, and as I would see it if I were advising Twitter, the problem is not the expense, it’s that refusing to comply with the court order means Twitter itself is violating the law.

It’s true that reporters will often take a contempt citation and go to jail to protect an anonymous source. When they do, it’s civil disobedience, and it’s often heroic. I hate to say it, but the stake are simply lower here. Anonymous-source-based journalism outed Watergate. It’s cultural and societal importance looms very large. Journalists have tried to get shield laws passed to prevent contempt being used to compel the identification of anonymous sources. And shield laws have been passed in many states. For the remaining gaps, brave reporters have often acted in defiance of the courts and the law to uphold free-press values.

The battle Twitter is fighting is different. It’s more of a general internet privacy issue, and while important, it’s a different ball of wax. It’s worth fighting for the cause in the courts, in the legislatures, and on the international level. But I’m not convinced there are fundamental rights here which necessitate disobeying court process.

I was pleased yesterday to get a call from Almostinnocentbystander, the anonymous blog commenter from Idaho who has drawn the ire of Republican-party county-level committee member Tina Jacobson.

Unfortunately, the newspaper that runs the Huckleberries Online blog where Almostinnocentbystander left her comments, is no Twitter. The Spokesman-Review decided to not try too hard to resist giving up Almostinnocentbystander’s identity and, instead of appealing a trial court order, decided simply to hand over the requested information. It’s sad to see a newspaper cave like that.

Resigned to being unmasked, Ms. Cook decided to control the manner of her outing and sent an opinion piece yesterday to another Idaho news outlet, which published it with her real name, Linda Cook.

Updating today’s earlier post, I have now posted the order [pdf] from Johns-Byrne v. TechnoBuffalo, in which the court denied Johns-Byrne’s attempt to find the identity of TechnoBuffalo’s tipster.

Also, here are some more excerpts from the opinion.

More to my point that the judge was not a fan of TechnoBuffalo, thus indicating that the decision in TechnoBuffalo’s favor wasn’t results-driven judging:

Reviewing the [TechnoBuffalo] website is disconcerting. The website makes it clear that TechnoBuffalo is inviting conduct which may or may not be legal and is very likely actionable. They solicit employees of tech companies to be “super secret ninjas” to “discover something top secret in your store’s inventory” and handover “inside information” to TechnoBuffalo who then disseminates it for their own purposes and who will “take your name to the grave.”

And more:

These solicitations are particularly detrimental to the intellectual property industry so reliant upon employee confidentiality and so sensitive to how and when their new concepts are disclosed. … Unlike other famous secrets whose sources were protected in order to inform citizens of government corruption and public misconduct, the sole purpose of the TechnoBuffalo solicitation is to promote TechnoBuffalo, without a second thought as to what harm it may cause lawful and productive companies whose stolen information it leaks.

By the way, I do not buy that these solicitations are detrimental to the industry. Also, I don’t think it is accurate to say that Motorola is in “the intellectual property industry.” Moreover, an “intellectual property industry,” as such, tends not to be heavily reliant on employee confidentiality precisely because of intellectual property laws. Much of this line of argument comes from distorted ideas of what constitutes a “trade secret.” But, anyway, it goes to show that this decision was made on the law, not, as we say in the lawyering business, the “atmospherics.”

One more excerpt, in which we see what the court made of Johns-Byrne’s argument that what TechnoBuffalo peddles is not news but “hype”:

JBC asserts that the content of the article at issue, or moreover, any of the content posted on the TechnoBuffalo website, does not amount to legitimate news but is rather mere “commercial hype” and “entertainment.” However, these concepts or terms of art are nowhere to be found in the Illinois Act. The Act nowhere states that certain content is news and other content, like the “hype” or “entertainment” asserted by JBS, is not news. The content of the “news” simply is not discussed and is not a factor in determining the application of the privilege under the current language of the Act. … TechnoBuffalo’s article falls under the broad, plain meaning of “news.” Therefore, JBC’s attempt to distinguish “hype” from actual news is unavailing.

Jon Rettinger, the founder and editor of gadget blog TechnoBuffalo, e-mailed me to let me know that they have won in their attempt to shield the source of leaked images of a yet-to-be-released cell phone.

Judge Michael R. Panter of the Cook County Circuit Court granted TechnoBuffalo’s motion for reconsideration, thus denying plaintiff Johns-Byrne Company, a commercial printer who made the packaging for the phones, the ability to find who in their company leaked the photos.

This is a substantial legal victory for the blogosphere, because it puts blogs on a potentially equal footing with mainstream news media when it comes to the special legal privileges that allow journalists to keep sources anonymous.

Whether blogging will inherit the privileged legal status of the traditional news media is, in my mind, the biggest question in blog law. This case strongly suggests the answer should be “yes.”

The key issue in applying the Illinois law was whether a blog would count as a “news medium.” Judge Panter decided it did, applying the law straightforwardly:

The issue of whether a blog/news site such as TechnoBuffalo is to be treated as a “news medium” is novel and has seldom been dealt with by other states containing shield laws. … “News” is defined by wwww.merriam-webster.com as “a report of recent events” and “previously unknown information.” Similarly Dictinary.com [sic] defines “news” as “a report of recent events.” Under the ordinary meaning of “news,” the article at issue presented a report on recent events, namely the upcoming release of a new Motorola smartphone. It also supplied previously unknown information. As such, TechnoBuffalo’s article falls under the broad, plain meaning of “news.” … In sum, withing the present definitions under the Act, this Court must find TechnoBuffalo is a news medium, its employees are reporters, including the employee who wrote the article at issue, and TechnoBuffalo is protected by the Illinois reporter’s privilege.

I applaud Judge Panter’s decision not only because it was, in my judgment, the right one, but even more so because it wasn’t results-driven jurisprudence. Judge Panter made it clear was was not love-struck with the scoop-savvy blog, which solicits anonymous tipsters:

Encouraging and enabling people to violate relationships of trust with their employers and to steal proprietary information may be odious. It may weaken the very industry that TechnoBuffalo depends upon. It may itself be actionable under the statutes and authorities JBC cites. However, as of this writing, it cannot be excluded from the extremely broad protection of the journalistic privilege.

Dan Turner has written an interesting piece in the Los Angeles Times about a lawsuit brought by a local Idaho political figure against an anonymous blog commenter.

Tina Jacobson, Chair of the Republican Central Committee of Kootenai County is pursuing the defamation suit against “Almostinnocentbystander,” who posted to the Huckleberries Online blog of Coeur d’Alene’s Spokesman-Review. The comment implied that Jacobson embezzled $10,000 from the Republican Party by stuffing it in her blouse.

Turner, a traditional journalist who has been with the L.A. Times editorial team since 2004, argues the case for non-traditional media participants. His argument implies that since anonymous web commenters ought to be taken less seriously than establishment journalists, they correspondingly ought to be deserving of more free-expression deference, not less:

“[O]ther cases seem to have clarified that Web readers don’t have the same 1st Amendment protections as journalists or the anonymous sources who provide information to journalists in the course of reporting. Yet if readers don’t have the same protections as news writers or sources, they also don’t have the same impact. Is it reasonable to claim you suffered damages because of something some nameless crank wrote about you on a blog, especially if you’re a public figure? Does the community at large take Web comments seriously enough that they could really damage a person’s reputation?”

To punctuate his argument, he dares the fourth wall.

“Readers: If you disagree, and want to inform me where I can stow my opinions, that’s OK. I promise not to sue.”

Jurors in Texas have handed a $13.8 million libel verdict to a married couple defamed on Topix.

Debra Cassens Weiss reports in the ABA Journal that Texas lawyer Mark Lesher and his wife Rhonda filed the suit against four defendants who posted anonymous comments accusing the couple of molestation, drug dealing, and perverted sexual behavior.

The Tarrant County jury apparently set a new record for online-libel verdicts. According to the Leshers, more than 25,000 defamatory posts forced Mark to shutter his law practice and Rhonda to close her beauty salon.

“We originally sued 178 John and Jane Does, and it all came down to two IP addresses,” she said. That led them to a married couple, Shannon and Gerald Coyel, and two employees of the couple, Charlie and Pat Doescher.

A few years ago, Shannon Coyel had accused the Leshers of sexually assaulting her. That led to a case and an acquittal in 2009.

Back in January, I blogged about the taxpayer-funded litigation campaign waged by the mayor of Aurora, Ontario. She got the town council to pony up funds to go after the Aurora Citizen blog and anonymous critics voicing opposition to Morris via the blog’s comments. As it turns out, the lawsuit didn’t help Morris’s political fortunes. Morris suffered a landslide loss in her bid for re-election. And then, the town council voted to de-fund her lawsuit – something that probably never should have been funded on the taxpayer dime in the first place. This summer, a judge rebuffed Morris’s attempt to get a court order to unmask the three anonymous contributors who were, apparently, the authors of the content Morris found most objectionable.

After that string of setbacks, Morris has now voluntarily discontinued her suit – meaning that she’s given up entirely on the litigation.

Thanks to Blog Law Blog reader Chris for sending me a note about this one.

The discontinuance is functionally a vindication for the defendants, who are blog proprietor-moderators William Hogg and Elizabeth Bishenden, contributor Richard Johnson, three anonymous commenters, and host WordPress.com.

It’s hard to tell what all exactly the material was that Morris contended was defamatory. Her suit claimed that material on the Aurora Citizen subject her to “ridicule, hatred and contempt.” But the what and why is not clear. A post from September 16, 2010 reprints a letter received from the town attorney demanding the removal of certain comments from the Aurora Citizen – a request the blog complied with, so we can’t see exactly what those comments were, and they seem to be about a different town official. Another post suggests that some material posted over the course of August 24, 2010 through October 2, 2010 was the basis of a defamation allegation at some point. So I’m guessing this and this might have annoyed her. But I can’t tell with any particularity what the offending language was.

Here’s what the Aurora Citizen had to say:

It was manifestly unfair that the defendants were put to the time and expense of legal fees at the hands of Ms. Morris, most especially in light of the fact that Ms. Morris used tax dollars to pursue them in what appeared to be a politically motivated attack intended to silence their efforts to hold her government accountable.

It is equally telling that Ms. Morris discontinued the litigation when she was called upon to fund it out of her own pocket rather than use taxpayer funds as initially intended. She was fully prepared to use town resources to support her private lawsuit, at the towns’ sole risk and expense to her sole potential gain, despite the fact that the Town’s Code of Conduct states clearly that “public office is not to be used for personal gain”.

While the defendants, Hogg and Johnson defended their principles with their own funds — Phyllis Morris did not.

Hopefully, there has been a lesson learned from this experience. Freedom of expression is a fundamental democratic right of all Canadians — but it is a right that will be attacked, and will need protection.

Eric Goldman, in a new blog post, hypothesizes that California’s newly enacted Reader Privacy Act could be read to impose statutory requirements on bloggers. The law requires “book services” to give notice to persons who are the target of a personal-information-seeking subpoena served on the book service. In other words, if someone throws a subpoena at an online book service in order to find out what books someone is reading, the book service has to first reach out to that someone before turning over the information.

So far, that doesn’t sound too bad.

But where Professor Goldman gets alarmed … (Let me just pause to note that while I would feel comfortable calling Eric Goldman by his first name, if I start saying “Eric argues” or “where Eric gets alarmed” on this blog, people are going to think I’m talking about myself in the third person. And while I’m generally okay with people thinking I’m a bit eccentric, I don’t want people thinking I’ve got the mindset of a marginal presidential candidate who is slowly losing touch with reality.)

So, anyway, as I was saying, where Professor Goldman gets alarmed is in looking carefully at who qualifies as a “book service” and who is therefore is obligated under the new law:

Let’s look closely at who is required to comply with the law — recognizing that the statute has a private cause of action that will be enforced by a rapacious privacy plaintiffs’ bar.

[C]learly this covers Amazon and other online book retailers. But in this day and age, what is a “book” and, more importantly, what isn’t? The statute defines a book as:

paginated or similarly organized content in printed, audio, electronic, or other format, including fiction, nonfiction, academic, or other works of the type normally published in a volume or finite number of volumes, excluding serial publications such as a magazine or newspaper

… [W]hat about blogs? Are they “book services”? Before you discount the latter, consider that many blogs are, in fact, paginated (at least in the URL–see Blog Law Blog as an example).

Isn’t that awesome? I did a nested double-blockquote! Who knew you could even do that? Hey, wait a minute! That’s ME he’s talking about! AIYEEEAAHHH?!?!? There’s nothing like waking up in the morning and finding out that the California legislature has just done something that might expose you to private plaintiffs’ actions.

But wait, I can actually breathe a sigh of relief, because I’m pretty confident I don’t count as a “commercial entity” under the law. And since I’m not a commercial entity, the law’s requirements don’t apply to me.

But what about you, dear reader? Does your blog have advertisements on it? Even AdSense or Amazon affiliate links could, in Goldman’s view, possibly expose a blogger to “commercial entity” status.

And that’s just one more reason not to have ads on your site. As I said in regards to the question of whether having an ad-bearing blog imposes tax liability (in a post that my WordPress installation faithlessly labeled “page 1075“):

My advice for most bloggers is this: Dump the ads. Why bother putting ads on your blog unless it is going to make you substantial amounts of money? Ads clutter up blogs. They look terrible, and they are often for products that are either ridiculous (like herbal cures) or kindov depressing (like life insurance). That detracts from a user’s experience. And if ads cause you to have legal trouble – and even trying to figure out if you have legal trouble is a kind of legal trouble – then you should flush them down the drain.

I’ll have more to say on California’s Reader Privacy Act in posts this week. I’ll weigh in on the debate between Paul Alan Levy of Public Citizen and Goldman about whether an individual can be an “entity’ under the new act. I’ll also explain my biggest problem with the new law.

A student of mine pointed out to me that ABC’s 20/20 news magazine did a piece on Sarah Jones, the Cincinnati Bengal cheerleader and Kentucky high school teacher who was wildly defamed on TheDirty.com and sued. That case is still unresolved. But the 20/20 piece is worth watching for no other reason than to be able to see Nik Richie answering questions.

If you are already happily ignorant of TheDirty.com, you should know that it’s a blog that posts photos of random people – often unknown, average people – and then attributes to them various sexual acts, sexually transmitted diseases, and crimes. It also commonly includes withering exegeses on these persons’ physical traits laced with profane invective.

The following, posted under a snapshot of a smiling college-aged girl, who was hugging a friend, is typical:

Nik, this fat waste of space is _____ ______. We went to high school together. She has always been thick… not in a good way. Her mom is nice but f*cking ugly. You can tell _____ will be just like her mom when she grows up… lol poor _____. She just posted on fb that some girls are so sad… yet she is the sad one to me. She is the BIGGEST SL*T I KNOW. When i say Big I mean physically BIG lol.

(“fb” means “Facebook” and “lol” means “laughing out loud.” The omissions indicated by underscores are mine.)

Nik Richie is the guy who makes all this possible. In the 20/20 interview, you can see that Richie is not only devoid of of conscience, but he is also megalomaniacal. In the interview Richie compares himself to – wait, are you sitting down? – Mark Zuckerberg.

You could sell Starbucks, and it’s the same, it’s the same thing. If it’s so terrible, why am I so demanded? Why am I a blogstar, as I call it? I’m pretty much a rockstar of the internet generation. … Look at Mark Zuckerberg. It’s the new wave of cool, hip, new celebrities. Internet celebrity. I’m in that realm with the Perez Hiltons, the Mark Zuckerbergs. You don’t have to be a computer nerd to be cool.

Whoa. First of all, Perez Hilton built up his following by constructing a personality people found compelling. And Mark Zuckerberg? Mark Zuckerberg not a “computer nerd”? I’ve made fun of Facebook, but let’s face it, Mark Zuckerberg is a serious geek. Zuckerberg has real geek chops – mathmatics, algorithms, coding, stuff like that. I take it, however, from his comments, that Richie doesn’t. That means that the only thing Richie has really brought to the table, that gives him his salient entrepreneurial advantage, is sociopathy.

In other words, Richie’s success in getting visitors to his site comes not from what Richie has – like far-sightedness, business acumen, or facility with technology (which Richie does not appear to have), it’s what Richie lacks – conscience.

To be proud of yourself under such circumstances is bizarre.

Hmmm. This reminds me of someone else who thinks they are an innovator. And I know you know who I’m talking about: Steve Gibson, founder of Righthaven. It’s the same fallacy I tried to explain in a post titled “Righthaven’s Innovation? Stooping Lower“:

Righthaven’s business plan is based around taking advantage of the law to do something the law itself never contemplated. I’ll give them this: Righthaven’s entrepreneurial angle is unique. But there’s nothing clever about it. Righthaven and its associated newspapers are on the cutting edge because they have stooped lower than anyone else in the news business has been willing to go. That’s nothing to be proud of.

That fits Nik Richie to T, except that TheDirty.com is not unique in the same way Righthaven is. And Steve Gibson is actually a smart guy. I see no indication of that with Richie.

Suburban Philadelphia English teacher Natalie Munroe wrote a personal blog on which she called her students “disengaged, lazy whiners,” “utterly loathsome,” and “frightfully dim.”

She was suspended last February, and now, after a summer of blogging about such things as blueberry-cranberry bread pudding, Munroe is back in her classroom, but parents are still mad.

The Associated Press reports that over 200 parents at Central Bucks East High School have informed school officials that they want their children kept out of Munroe’s classes. Yet some out there hail her for telling the truth.

Munroe says her blog quotes have been taken out of context and that the media has made inaccurate statements about her. So I’ll let her provide some context with a quote from her blog post the day the scandal broke: (And note that when Munroe says “blogs” she apparently means “blog posts.”)

Of my 84 blogs, 60 of them had absolutely nothing to do with school or work. Of the 24 that mentioned it, only some of them were actually focused on it–others may have mentioned it in passing, like if I was listing things that annoyed me that day and wrote without any elaboration that students were annoying that day. …

Contrary to what seems to be popular belief, I didn’t–and don’t–feel negatively toward all students. As I mentioned in another blog that nobody chooses to talk about, there were delightful students in school, too. I fondly discussed some wonderful students who shined in the school’s Jazz and Poetry Festival, and I even said that I was proud to be part of the school at events like that.

But the fact remains that every year, more and more, students are coming in less willing to work, to think, to cooperate. These are the students I was complaining about in my blog. The same way millions of Americans go home at the end of the day and complain about select coworkers or clients or other jerks they had to deal with, I came home and complained on my blog about those I had to deal with.

Unfortunately, the 84 prior posts have been deleted. Without Munroe making her old posts available, it’s hard to form your own opinion from scratch. (And unfortunately, the Internet Wayback Machine doesn’t have the old posts either.) So I guess we’ll have to say she’s at least guilty of writing something regrettable.

One interesting note is that Munroe apparently tried to keep her blog anonymous. But she didn’t try very hard. For instance, she didn’t use student names or her own whole name. But she did sign her blog as “Natalie M.,” and she apparently included a picture of herself as well. So, not real anonymous at all.

So, what’s the legal dimension here? While some people are calling for Munroe to be fired, one blogger wants the school district to keep her on to avoid a lawsuit.

Was Munroe’s blog protected free speech?

That’s a good question. Off-site speech by public employees concerning their job is an area where the First Amendment has an impact but doesn’t offer full protection. There’s a lot of case law in this area, but I haven’t researched it. So, I can’t say which way I think this would come out.

Also, it’s possible Munroe could make the argument that her blogging is protected under federal labor law. I don’t know how strong that argument would be, and the strength of it would in part depend on the content of her posts and her intended audience, which are facts that are obscured by the deletion of her old posts.

Then, of course, there’s the issue of whether a firing would violate the collective bargaining agreement between the teachers and the school district. That’s something that would depend entirely on the CBA’s terms.

Bottom line, apparently the school district has determined it is not legally in the clear to fire her. That means this story will eventually fizzle out.

A few years from now, it will be something a few students gossip about sporadically: “Did you know that Ms. Munroe … “ A few years after that, no one will remember it at all. (I read recently that Anita Hill’s students today generally have no idea about her nationally famous role in the Clarence Thomas hearings. That kind of boggles my mind … )

Anyway, I guess the broader lesson we are learning is that high school teachers trail only slightly behind high school students and maybe just ahead of high school administrators in their moth-to-a-flame attraction to blogging trouble.

The Bloomberg story says, “The cases are the most significant efforts by Chinese companies that trade on U.S. exchanges to fight back against bloggers and short sellers who have questioned their accounting practices.”

Shenzen-based DEER’s shares have plummeted 41 percent since Little’s negative report on Seeking Alpha. (Which, by the way, disclosed that Little was short DEER. To which any investor reading the post must have said, “Duh.”) Xi’an-based Sino Clean Energy’s shares are off 49 percent since Little wrote a post headlined “Sino Clean Energy Is a Complete Hoax and Its Shares Are Worthless.”

Okay, now, here’s what Sino Clean Energy does, according to its own website:

Sino Clean Energy is commercial producer and distributor of coal-water slurry fuel (“CWSF”) commonly referred to as Coal Water Mixture (“CWM”) which is clean fuel that consists of fine coal particles suspended in water.

Clean fuel? I’m sorry, is it just me, or does a slurry made of water with fine coal particles suspended in it sound like the dirtiest thing ever? I mean, that stuff is going to stain. You’ll need Lava soap, a pumice stone, and at least 20 minutes of hand washing after you put your hands in that, I’m thinking. Before you write me and tell me they mean “clean burning,” I get that. But I still find it hilarious to call “coal-water slurry” clean fuel.

Anyways, Bloomberg has a source that says Alfred Little is a “cover for a group of investors and research analysts, most of whom are Chinese, who are making money exposing fraud in Chinese U.S.-listed companies.”

If this is really market manipulation, shouldn’t buying shares of these companies at depressed prices be a terrific bargain? And if that’s true, shouldn’t the market solve this problem without involving the courts?

Neither DEER nor Sino Clean Energy responded to Bloomberg’s requests for comment. If I were an upstanding U.S.-listed Chinese company screwed over by market-manipulating short-selling bloggers, I would have been all over that attempt to defend myself.

That seeming reluctance to talk, combined with a shady way these companies had of getting listed on American exchanges, called a “reverse merger,” plus the fact that DEER and Sino Clean are being sued in shareholder class-actions, makes me suspect that free speech is doing exactly what it’s meant to do here.

A soccer player who is famous in the United Kingdom, Ryan Giggs, apparently obtained a “super-injunction” to force the press to not reveal his name in connection with ongoing litigation involving an extra-marital affair he allegedly had with UK reality-television star Imogen Thomas. He has now apparently sued Twitter and Twitter users for revealing his identity.

The so-called super-injunction is one that not only gags the press and others with regard to the sensitive subject matter (such as allegations of an extra-marital affair), but also prohibits the press from even reporting about the injunction itself, thus shielding the identity of the person who took out the super-injunciton.

As your author of Blog Law Blog, based in the United States, I am confident that the First Amendment to the U.S. Constitution protects my ability to identify the person. And regardless, free-speech sufficient to discuss the use and potential over-use of judicial power ought to be considered a universal human right.

I actually looked through several news stories looking for the athlete’s name. All the sites I read, all of which were UK-based, were very cheeky, refusing to name Griggs, but dropping lots of hints, implying that the reader must then know who it was.

I’m sorry, but for me, on this side of the pond, if it’s not David Beckham, then I’m not going to know who it is unless you give me a name.

I eventually was able to get Griggs’s name through Google’s auto-complete feature, by typing in “superinjunction footballer …”

And now Griggs is suing Twitter, which was apparently where his identity broke.

And now, here’s my commentary on the law: The super-injunction is a rank abuse of judicial power. It’s especially disappointing, to me, since the United Kingdom is one of the few countries on Earth that places the sort of premium on free speech that the United States does.

Imogen Thomas, Griggs’s ex-squeeze, who has been accused of blackmail in this whole thing, had this to say in the UK’s Daily Mail, which I think shows quite nicely what is wrong with the super-injunction as a legal institution:

“Yet again my name and my reputation are being trashed while the man I had a relationship with is able to hide.

“What’s more, I can’t even defend myself because I have been gagged. Where’s the fairness in that? What about my reputation?

“If this is the way privacy injunctions are supposed to work then there’s something seriously wrong with the law.”

I’ve been thinking back over the last year, Blog Law Blog’s first year, and trying to figure out what broad lessons there are to be learned about blog law. The most striking thing to me, I think, is the tremendous number of altercations we’ve seen between local officials and bloggers.

Where do local officials get off thinking they should be able to silence online critics? What’s a bit puzzling is that the behavior exhibited by local officials toward the online press is something you would never see either (1) by federal or higher-level state politicians and officials, or (2) by local officials against the traditional media. Well, you might see it very rarely. But not with the frequency and abandon with which town politicos go after laptop-wielding gadflies.

So what accounts for the difference?

I think a big part of it is that local officials aren’t used to the heat. National politicians have always put up with vitriol. For them, the internet has perhaps added to the number of hecklers, but the phenomenon is not utterly new for elite officials.

But on the local level, blogs have propelled brickbats into a void. It’s all new for local officials. And the do not like it.

Much of the blog activity that leads to lawsuits is mean-spirited and nothing to cheer about. Nonetheless, you can’t deny that this is participatory democracy. I can’t help but think that when blogging comes to town hall, it is perhaps the greatest fulfillment of the vision the forefathers had for the First Amendment. This is the core within the core of free speech. I think Jefferson, Madison, and the rest would say this is exactly what democracy and freedom of press are all about.

That said, I get that it hurts. A big part of what drives local officials to get lawyered up is the anonymity blogs allow. People are mean anonymously in a way the would never be with their name attached. There’s no doubt about that.

Another part of the story is that the criticism is in print. No doubt local officials have always been subject to mean-spirited gossip. But gossip uttered on the air is less hurtful than font-rendered invective. It goes back to the traditional legal difference between slander and libel – that is, oral vs. written defamation. The common law’s distinction no doubt grows from an important difference in how we perceive the harmfulness of ephemeral speech versus inky text.

Here are posts from BLB where local officials use the law to attack blogs in 2010:

Today is Martin Luther King, Jr. Day in the United States. And it reminds me that the relation between blogging and civil rights is one that could use some more exploration.

A paper that discusses many aspects of the relation is Cyber Civil Rights, 89 Boston University Law Review 61 (2009) by the University of Maryland School of Law’s Danielle Keats Citron. [Download from SSRN]

The paper already has 23 citing references on Westlaw. Here is the abstract:

Social networking sites and blogs have increasingly become breeding grounds for anonymous online groups that attack women, people of color, and members of other traditionally disadvantaged groups. These destructive groups target individuals with defamation, threats of violence, and technology-based attacks that silence victims and concomitantly destroy their privacy. Victims go offline or assume pseudonyms to prevent future attacks, impoverishing online dialogue and depriving victims of the social and economic opportunities associated with a vibrant online presence. Attackers manipulate search engines to reproduce their lies and threats for employers and clients to see, creating digital “scarlet letters” that ruin reputations.

Today’s cyber attack groups update a history of anonymous mobs coming together to victimize and subjugate vulnerable people. The social science literature identifies conditions that magnify dangerous group behavior and those that tend to defuse it. Unfortunately, Web 2.0 technologies accelerate mob behavior. With little reason to expect self-correction of this intimidation of vulnerable individuals, the law must respond.

General criminal statutes and tort law proscribe much of the mobs’ destructive behavior, but the harm they inflict also ought to be understood and addressed as civil rights violations. Civil rights suits reach the societal harm that would otherwise go unaddressed and would play a crucial expressive role. Acting against these attacks does not offend First Amendment principles when they consist of defamation, true threats, intentional infliction of emotional distress, technological sabotage, and bias-motivated abuse aimed to interfere with a victim’s employment opportunities. To the contrary, it helps preserve vibrant online dialogue and promote a culture of political, social, and economic equality.

There seems to be a never ending stream of local government people in Canada waging war against blogs that criticize them. (E.g., Meaford, ON; Edmonton, AB; Toronto, ON.)

Here’s the latest one from this fall: Phyllis Morris, when she was mayor of Aurora, Ontario and running for re-election, got the town council to agree to foot the legal bills for going after the Aurora Citizen blog and anonymous critics voicing their opinions on the site. With taxpayers paying, Morris then sued a bunch of people, including people behind the blog, anonymous defendants, and WordPress.

After the town had incurred $43,000 in legal fees, the council voted (just before Christmas) to cut off funding.

Why the change of heart? Well, apparently people in the town started to squawk. (Which is why politicians like to keep these legal campaigns secret when then can. E.g., Edmonton mayor Stephen Mandel.) In other words, politicians like to avoid criticism. If silencing critics with lawsuits doesn’t work, then governing in accordance with the will of the electorate is the plan B.

My favorite bit is Councillor John Gallo, who was quoted in the YorkRegion as saying, “we never agreed to sue any private residents; that was never on the table when I agreed to the motion.”

Really?

The September 14, 2010 resolution directed the town solicitor to hire outside counsel and “take any and all actions to bring resolution to this matter[.]”

If Gallo didn’t think that would include a lawsuit, then he’s a real noodlehead.

By the way, Gallo was the lone vote on the council for continuing to use town money to fund the legal war against the blog. He didn’t think it would be right to change things now. Well, clearly, he’s a man of integrity.

It’s kind of hard to tell what the allegations are because the complaint [pdf], filed by the Stevenson & Smith, P.C. law firm of Ogden, UT, is a bizarre mess.

For example, one defendant, WordPress.com’s parent, Automattic, is being sued on the theory that, well, uh, I just don’t know. WordPress.com is a blog host, and Xenophilia is hosted on WordPress.com. Those are the facts. Here is what is alleged.

9. Defendant Xenophilia runs a website known as WordPress. Wordpress provides free blog hosting for its users. One such user is the Xenophilia blog located at xenophilius.wordpress.com.

These attorneys don’t seem to understand much about blogs – nor did they bother to learn much before they filed the complaint. Clearly, they don’t seem to understand the difference between a blog host and a blog.

Nor, does it seem, do they understand the difference between a blogger and a commenter.

Here’s a passage I particularly like from paragraph 23:

Neither Complaintsboard.com, Arvoice.com or WordPress.xenophilia.com has revealed the contact information and identity of the bloggers, despite the fact that such information is not protected when the bloggers use the blog for illegible purposes.

I mean, that’s just funny. Can you imagine the law looking askance at blogs used for “illegible purposes”?

And you’ve got to wonder, if it’s illegible, how can it be defamatory?

(By the way, that’s the complaint’s original spelling of “Artvoice.com” as “Arvoice.com.”)

And there’re also other problems, of course, such as, Section 230, which I’m not sure the attorneys understand either.

The Sun Times of Owen Sound, Ontario reports that the town of Meaford, Ontario has obtained the identity of a person behind www.francisformayor.blogspot.com, an anonymously authored blog that was critical of the incumbent mayor during a recent election.

The mayor, Francis Richardson, managed to get re-elected despite the blog supposedly having interfered with the election.

The town of about 11,000 people was able to get the identity from IP addresses turned over by Google.

The town is still pressing Google for more information so it can get the identity of anonymous commenters.

Richardson wants to publicly reveal the blogger’s identity “for the main reason of having that kind of thing stopped.”

Richardson claims it wasn’t attacks on him that pushed the city to use legal process to find the blogger’s identity. It was, he says, the material critical of his staff.

“It was the attack on the staff that council responded to. It requires us to get very, very, very serious to get people to realize they can’t take those kinds of shots at our staff without the corporation doing something about it,” Richardson told the Sun Times.

The article doesn’t say what the blogger or commenters said that is allegedly civilly actionable. Supposedly a defamation lawsuit is in the offing.

Edmonton Mayor Stephen Mandel. Image copyright claimed by City of Edmonton. Used without permission.

Another politician angered by an anonymous blogger has sued; this time in Canada.

Edmonton Mayor Stephen Mandel not only wanted to unlock the secret of his critic’s identity with a lawsuit, Mandel wanted to keep his own lawsuit a secret. But a court in Alberta has now unsealed the mayor’s complaint for defamation, reports the CBC broadcast network.

Mandel’s lawyer argued that the lawsuit should proceed in secret until an investigation was completed. But Justice Donna Read of Alberta Court of Queen’s Bench ordered the unsealing after hearing arguments from the CBC and the Edmonton Journal newspaper.

“The courts are open,” Read said, according the CBC. “Freedom of expression exists. There is no good reason for that statement of claim to be sealed.”

Mike Masnick at TechDirt has a nice succinct synopsis of the incredibly frightening I-can’t-believe-this-happened-in-America story of the First Baptist Church in Jacksonville, Florida and the government/church joint venture that came after blogger Tim Rich:

A local sheriff’s detective, Robert Hinson, who was (in addition to being a sheriff’s detective) a member of the same church, a provider of security to the church, a deacon at the church and a member of the church’s “disciplinary committee,” used his position in the sheriff’s office to open an official investigation into the blog …